S.K. Ray, J.
1. This second appeal by defendants 1 to 7 arises out of a suit for declaration of title, confirmation of possession, or in the alternative for recovery of possession of the disputed land, and for an injunction restraining the defendants from demolishing the house standing thereon and from disturbing the possession of the plaintiffs in respect thereof.
2. The suit-land has been set outin two schedules of the plaint, Ka and Kha. Ka Schedule land comprises of five decimals and Kha schedule land comprises of three decimals. The suit-lands are comprised in plot No. 431 of Khata No. 107 of Mouza Malipur, and they were recorded in the name of Gopinath Das and others, as landlords, in the settlement record of rights. The recorded Sikimi-tenants in respect thereof were Pan, Nisamani, Sindhu (defendant 7) and Kanda (defendant 8) and Gandhi. Pan's sons are defendants 3 to 6, Nishamani's son is defendant 1 and his widow is defendant 3. These recorded Sikimi-tenants defaulted to pay rent and ultimately surrendered their Sikimi-tenancy right in favour of the landlords in April, 1929.
On 9-11-33 Gopinath Das as the Karta of the entire body of the landlords leased out five decimals from the middle of the plot (Ka sch.) in favour of the father of plaintiff 1 by an unregistered sale-deed. Thereafter plaintiff-1's father constructed a house on a portion of the land and used the rest, of the land as Bari. Plaintiff No. 1's father died 12 to 13 years back and plaintiffs were in possession thereafter. Out of the balance or nine decimals, one decimal was leased out by the said Gopinath Das to one Chhakadi who constructed a house thereon for holding a school and thus possessed it. Later on the house brokedown and Chhakdi abandoned it and that land came into possession of defendant-4. Rest of the eight decimals were leased out to defendant-7, Gandhi and Tula (d-2) and they are in possession.
Coming to Kha sch. lands the plain-tiff's case is out of the eight decimals leased out to Sridhar, Gandhi and Tula, three decimals were leased out by those lessees to the father of plaintiff-1 and pIaintiff-2 by an unregistered sale-deed dated 4-12-33 (Ext. 5). This, in short, is the story of the plaintiff's acquisition of full title, that is, status of a raiyat, and possession. Subsequently, on 24-3-50 defendant-7 executed -and registered a sale-deed in respect of two decimals out of Ka Schedule land in favour of defendant 4 who along with his brother, defendant-5, have lands adjoining the suit-lands to the south. This transaction is alleged to be a sham document. They also alternatively claimed acquisition of title of a raiyat by adverse possession.
3. The case of defendants 1 to 7 is substantially a denial of the plaintiff's averments. They deny the alleged surrender by the recorded Sikimi-tenants in favour of the landlords and also deny the subsequent leases by Gopinath, one of five decimals in favour of Dibakar, father of plaintiff No. 1 under Ext. 6, lease of one decimal in favour of Chhakadi and the further lease of eight decimals in favour of Sindhu and others. They also deny the transaction evidenced by Ext. 5. Their case is that they had a house on a portion of suit-plot No. 431 and used the rest of it as Bari. Tula and Sindhu leased out one decimal and two links out of it to Chhakadi and after the death of Gandhi defendant-7 was entitled to two-fifths share of 0.14 decimals that is five decimals and six links. Sindhu transferred four decimals out of it in favour of defendant-4. Chhakadi also transferred one decimal and two links in favour of defendant-4. Thus defendant-4 possessed six decimals and two links. In 1952 he built two houses on his land and also constructed a permanent house in 1956. The plaintiffs having their original house sold in auction came and lived in the house of Gandhi Mallik, their agnatic brother. Defendant-4 permitted them to live in the house temporarily for a year. Subsequently, they fraudulently obtained a lease deed from Radha Prassanna Das, son of the ex-landlord and some bogus rent-receipts to buttress up their present case.
4. The trial court found that the plaintiffs had acquired title by adverse possession and decreed the suit. The lower appellate Court though did not believe the case of surrender by the Sikimi tenants, nevertheless found the plaintiffs to be in continuous possession since 1933, and decreed the suit; in other words he alsoupheld acquisition of title by adverse possession.
5. Learned counsel for the appellants has raised two points; (1) The plaintiffs having admitted that they are the lessees of defendants 2, 7 and Gandhi, they cannot set up a case of acquisition of title by adverse possession. Section 116 of the Evidence Act has been invoked in support of this contention. (2) Surrender by the Sikimi-tenants in favour of the landlord having been disbelieved, the lands were not available to the landlord for fresh settlement. Accordingly no interest was conveyed under Ext. 6 dated 9-11-32, and the plaintiffs therefore cannot be said to have acquired any raiyati right thereunder.
6. Coming to the first point, it will be seen that the plaintiff's own case is that they got three decimals under an unregistered lease-deed, Ext. 5, dated 4-12-33 from Sridhar, Gandhi and Tula. Section 116 of the Evidence Act provides that no tenant of any immovable property shall, during the continuance of the tenancy, be permitted to deny his landlord's title. This section rests on a well-established English doctrine 'that a tenant who has been let into possession cannot deny his landlord's title however defective it may be, so long as he has not openly restored possession by surrender to his landlord' (Bilas Kun-war v. Desraj Ranjit Singh, 42 Ind App. 202) = (AIR 1915 PC 96). To the same effect is the decision of the Privy Council in the case reported in AIR 1935 PC 59 (Chandrika Prasada v. B. B. & C. I. Rly., Co.), viz. 'Tenant cannot dispute his lessors' title so long as he remains in possession under an agreement which he has made with them.'
In view of this principle and in view of the admissions of the plaintiffs that they got three decimals of the suit-land by lease from some of the cosharer Sikimi-tenants, their suit in respect of the same, viz., three decimals under Ext. 5 must fail, as they will not be permitted to deny their lessor's title. Their possession, however, as lessees must be maintained until evicted in due course of law.
7. Coming to the next point, it will be seen that the lower appellate court has found that there was no surrender by the Sikimi-tenants to the landlord. The landlords accordingly had no right to settle the lands afresh. The plaintiffs, therefore, got no interest under Ext. 6. But they have been found to be in posses-sion for more than 12 years since 1933. They entered into possession as lessees under the landlord, but since the lease-deed failed, their possession would be adverse both to the landlord and also to the Sikimi-tenants. As against the land-lords, the plaintiffs or their predecessor-in-interest never asserted possession under any claim of absolute right other than the rightof a raiyat and so they would be acquiring, on lapse of 12 years, a prescriptive right to the limited right of raiyat, on the principle laid down in the case of Purusottam Das v. S. M. De Souza reported in AIR 1950 Orissa 213 and in the case of K. Sudaly v. A. Panicker, reported in AIR 1959 Ker 172. The plaintiffs are, therefore, entitled to succeed in regard to five decimals of land acquired under Ext. 5. As against the Sikimi-tenants they would also be prescribing to the limited right of Sikimi-ten-ancy but when the prescriptive title to both the limited rights would mature, the lesser right of a Sikimi-tenant would merge in the higher right of a raiyat on the theory of merger of the lesser interest in the greater when the two interests co-exist in the same person and they would thus acquire the status of raiyat.
The result is that the suit must be decreed in full so far as five decimals of land under Ext. 6 are concerned, and to that extent the appeal must be dismissed, but the suit for declaration of title in regard to three decimals of land under Ext. 5 as already indicated must fail though their present possession must be maintained until evicted in due course of law. Since the appeal has succeeded in part, parties will bear their own costs throughout.
Appeal is allowed in part.